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2008 DIGILAW 1009 (BOM)

Vakil Palani Harijan v. State of Maharashtra

2008-07-16

A.S.OKA

body2008
JUDGMENT The submissions of the learned counsel appearing for the parties were heard on the last date. The applicants have invoked section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code) for quashing the criminal proceedings on the basis of F.I.R registered at the instance of the 2nd respondent alleging commission of offence punishable under section 326 read with section 34 of the Indian Penal Code. 2. In the F.I.R, the 2nd respondent stated that he was scheduled to get married on 12th February 2004 at Wagund Nagar, Goregaon (W). He stated that his brother, his mother and sister had visited Mahakali Nagar, Malvani on 11th February 2004 for making arrangements. He alleged that the applicants and one Sandeel came to his place of residence and assaulted him by using choppers. He stated that he suffered serious injuries to both his hands and legs and he was admitted in Bhagwati hospital. 3. In the F.I.R it is alleged that the 2nd respondent had a love affair with one Ms.Bakia who happened to be a relative of the applicants. The said relationship was not approved by the applicants. The said Ms.Bakia expired and three months thereafter the 2nd respondent was getting married. 4. It is alleged in this application that the applicants and 2nd respondent have settled the dispute between them and therefore, it is prayed that this Court should exercise power under section 482 of the said Code for quashing the criminal proceedings. The 2nd respondent has filed an affidavit supporting the petitioners. 5. The learned counsel for the applicants submitted that considering the injuries on the person of the 2nd respondent as mentioned in the injury certificate, it was obvious that section 326 of the Indian Penal Code was not at all attracted and at the most section 324 of the Indian Penal Code could have been applied. Relying upon various decisions of the Apex Court she submitted that a case is made out for quashing the proceedings. 6. The learned A.P.P appearing for the State invited my attention to the affidavit of Shri Arun Ghag, Assistant Police Inspector attached to D.N.Nagar Traffic Division, Andheri. He pointed out that even a chargesheet has been filed on 23rd June 2004. 6. The learned A.P.P appearing for the State invited my attention to the affidavit of Shri Arun Ghag, Assistant Police Inspector attached to D.N.Nagar Traffic Division, Andheri. He pointed out that even a chargesheet has been filed on 23rd June 2004. He pointed out that during the course of investigation, the choppers allegedly used in the offence have been recovered at the instance of the applicants. He submitted that in view of the decision of the Apex Court in the case of State of Orissa and Anr. Vs. Sarojkumar Sahu [ (2005) 13 SCC 540 ], the power under section 482 of the said Code cannot be exercised in a case where chargesheet has been filed. He submitted that in a case where chargesheet is filed, it is not permissible to quash the proceedings after appreciating the material produced alongwith the chargesheet and the remedy of the accused is different. He also placed reliance on a decision of the Full Bench of this Court in the case of Abasaheb Yadav Honmane Vs. State of Maharashtra [2008 ALL MR (Cri.) 1952]. 7. He pointed out that this was a case where a very serious offence under section 326 of the Indian Penal Code has been alleged against the petitioners and there is a recovery of choppers. He submitted that no case is made out for exercising power under section 482 of the said Code. 8. I have carefully considered the submissions made by the learned counsel appearing for the parties. The decision of the Full Bench of this Court in the case of Abasaheb Honmane (supra) has considered the entire law on the subject. In paragraph No.7.10 of the said decision, the Full Bench has referred to well recognised tests for applicability of section 482 of the said Code. The Full Bench held that it is neither permissible nor proper for the Court to provide a straight jacket formula regulating exercise of inherent powers under section 482 of the said Code, particularly in relation to quashing, as it would depend upon the facts and circumstances of the given case. The Full Bench held that no precise and inflexible guide-lines or straight jacket formula or catalogue of the circumstances in which power should be or should not be exercised can be laid down. The Full Bench held that no precise and inflexible guide-lines or straight jacket formula or catalogue of the circumstances in which power should be or should not be exercised can be laid down. However, the Full Bench has incorporated in paragraph 7.10 certain well recognised principles governing exercise of powers under section 482 of the said Code. 9. It must be remembered here that the prayer in this application is not for compounding the offence which is non-compoundable. The Full Bench has reiterated what has been held by the Apex Court from the year 1973 onwards that the powers of this Court under section 482 of the said Code are not limited or affected by the constraints of provisions of section 320 of the said Code. The powers of this Court under section 482 of the said Code are independent and in a given case the powers can be exercised to quash proceedings where allegation is of commission of an offence which cannot be compounded under section 320 of the said Code. 10. The learned A.P.P has placed reliance on the decision of the Apex Court in the case of State of Orissa & Anr (supra). The Apex Court in the said decision has not held that in a case where a chargesheet has been already filed, power under section 482 of the said Code can never be exercised. All that the Apex Court has held is that in such a case it is not permissible for the High Court to appreciate the evidence and material on record and to pass an order of quashing. The reason being that other remedies are available to the accused. 11. The quashing in this case is sought on the basis of an amicable settlement between the petitioners and the 2nd respondent. In the case of B.S.Joshi & Ors. Vs. State of Haryana & Anr [ (2003) 4 SCC 675 ] : (2003 ALL MR (Cri) 1162 (S.C.))] the Apex Court exercised power under section 482 of the said Code for quashing the prosecution for offence punishable under section 498-A of the Indian Penal Code on the ground of settlement between the husband and wife. The Apex Court observed that if for the purpose of securing the ends of justice, quashing of F.I.R becomes necessary, section 320 would not be a bar to the exercise of power of quashing. The Apex Court observed that if for the purpose of securing the ends of justice, quashing of F.I.R becomes necessary, section 320 would not be a bar to the exercise of power of quashing. However, whether the power is to be exercised or not depends on the facts of each case. 12. It will be necessary to refer to another decision of the Apex Court in the case of Madhavrao Jiwaji Rao Scindia & Anr. Vs. Sambhajirao Chandrojirao Angre & Ors [1988 Cri.L.J. 853]. In paragraph No.7 of the said decision, the Apex Court dealt with the power of the Court under section 482 of the said Code. In paragraph 7 the Apex Court observed thus: "7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." Thus, what has been held by the Apex court in the case of Madhavrao (supra) is that while exercising powers under section 482 of the said Code it is for the Court to take into consideration any special features which appear in a particular case and thereafter to consider whether it is expedient and in the interests of justice to permit prosecution to continue. The Apex Court observed that the fact that the chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue are the factors which can be always taken into consideration by the Court while exercising the power under section 482 of the said Code. The Apex Court observed that the fact that the chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue are the factors which can be always taken into consideration by the Court while exercising the power under section 482 of the said Code. It is obvious that existence of the two factors by itself is no ground to quash proceedings in each and every case. However, while considering the facts of a peculiar case, these factors are surely relevant for the consideration of a prayer for quashing made under section 482 of the said Code. 13. In the case of Ram Kashiram Salvi & Ors. Vs. State of Maharashtra & Ors. [2007 ALL MR (Cri.) 426] this Court exercised the power under section 482 of the said Code where offences alleged were under sections 326, 324 and 427 of the Indian Penal Code considering the peculiar facts of the case. This was a case where there was a fight arising out of a union rivalry and the parties had settled the dispute. 14. Now turning to the facts of the present case, by taking what is stated in the injury certificate as correct, it is obvious that section 320 of the Indian Penal Code cannot be applied. Prima facie, it is not possible to accept that section 326 of the said Penal Code is applicable. Moreover, there is an affidavit filed by the 2nd respondent. In paragraph Nos.1 and 2 of the said affidavit, it is stated thus: "1. I am served with the copy of the petition filed by the petitioners in this case. I have perused the contents. During the pendency of the case, I and the applicants had a meeting and we have settled the dispute amicably. I do not have any grievance against the Applicants. 2. Hence, I have no objection if the proceedings against the applicants initiated in pursuance of my F.I.R No.64/04 of Malad Police Station, vide C.R.No.476/PW/04 before learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali against the applicant Nos.1 and 2 is quashed. " It is obvious that considering the peculiar facts of the case, the chances of an ultimate conviction are very bleak. Hence, no useful purpose is likely to be served by allowing the criminal prosecution to continue. " It is obvious that considering the peculiar facts of the case, the chances of an ultimate conviction are very bleak. Hence, no useful purpose is likely to be served by allowing the criminal prosecution to continue. Considering the facts of the present case these two factors are certainly relevant while exercising powers under section 482 of the said Code. 15. In my view, a case is made out for exercising powers under section 482 of the said Code. Accordingly, application is allowed in terms of prayer clause 6(iii). The parties and concerned Court to act upon an authenticated copy of this order. Application allowed.